Citation: SafeWork NSW v NSW Bricklaying Pty Ltd [2020] NSWDC 160
Court: District Court of New South Wales
Date: 1 May 2020
Judge: Scotting DCJ
Background
NSW Bricklaying Pty Ltd was engaged to construct a brick partition wall at a residential duplex construction site in Carlingford. The company's sole director, who was also its working director and on-site supervisor, directed workers to build the wall to approximately six to seven metres in height over several days in August 2017. When the company's workers left the site on 15 August 2017, the wall had not been adequately braced.
The following morning, at around 10:00 am on 16 August 2017, the wall collapsed. It fell onto Quoc Thong Tran, who was working at the site. Emergency services attended and Mr Tran was pronounced dead at 10:48 am. A second worker was also found trapped in the rubble but survived.
SafeWork NSW prosecuted the defendant company for failing to comply with its health and safety duty under section 19(2) of the Work Health and Safety Act 2011 (the Act), thereby exposing Mr Tran to a risk of death or serious injury, contrary to section 32 of the Act. The defendant entered a plea of not guilty. After its legal representative ceased engagement, it did not participate further, and the matter proceeded as an ex parte hearing with the prosecution required to prove all elements beyond reasonable doubt.
Legal Issues
- Whether the defendant, as a person conducting a business or undertaking, owed a health and safety duty under section 19(2) of the Work Health and Safety Act 2011 in relation to Mr Tran.
- Whether the defendant breached that duty by failing to take reasonably practicable steps to eliminate or minimise the risk posed by the unbraced wall.
- Whether the defendant's breach exposed Mr Tran to a risk of death or serious injury within the meaning of section 32 of the Act.
Decision
The District Court was satisfied beyond reasonable doubt that the defendant held a health and safety duty under section 19(2) of the Act. As the bricklaying contractor responsible for constructing the partition wall, the defendant had obligations not only to its own workers but also to other persons who might be affected by the conduct of its work, including Mr Tran.
The court found the defendant breached that duty by failing to take reasonably practicable steps. In particular, it did not prepare or implement a Safe Work Method Statement (SWMS) for the work, did not install adequate temporary bracing or support for the wall, and did not establish an exclusion zone around the fall zone of the wall after construction was completed. The sole director had acknowledged in his record of interview that bracing should have been installed to address the risk of wind loading on an unsupported wall. The court was satisfied these measures were reasonably practicable given the foreseeable risk, and that the cost of implementing them was not grossly disproportionate to the risk involved.
On the question of exposure to risk, the court found the six-to-seven-metre wall was inadequately supported and created a real risk that it would collapse under side loading from the wind. The death of Mr Tran was itself evidence of the existence of that risk. A risk assessment, had one been conducted, would have identified that persons in the fall zone faced a risk of death or serious injury. The defendant's failure to brace the wall and establish an exclusion zone left Mr Tran exposed to that risk.
The court returned a verdict of guilty and indicated it would hear the parties on the question of sentence.
Orders Made
• NSW Bricklaying Pty Ltd is found guilty
• The prosecutor will be heard on sentence
Key Takeaways
- The District Court confirmed that a bricklaying subcontractor's duty under section 19(2) of the Work Health and Safety Act 2011 extends to persons beyond its own workers, including any person who may be affected by the conduct of its work at a site.
- Under section 32 of the Act, proof that a defendant's breach of duty exposed a person to a risk of death or serious injury does not require that the risk materialise, though the death of Mr Tran was treated as evidence that the risk was real and foreseeable.
- Proceeding on an ex parte basis did not relieve the prosecution of its obligation to prove every element of the offence beyond reasonable doubt. The court rigorously assessed only admissible evidence and drew careful inferences from the material tendered.
- The absence of a Safe Work Method Statement, where one was reasonably practicable to prepare and implement, formed a central component of the established breach. The defendant's sole director had acknowledged the relevant risk (wind loading on an unbraced wall) but took no steps to address it.
- Describing work as "routine" or "small and easy" does not reduce the obligation to identify and address foreseeable hazards. The court found that the defendant's characterisation of the job as low-risk did not excuse its failure to implement basic structural safety measures.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(2), 32
- Work Health and Safety Regulation 2013 (NSW)
- Interpretation Act 1987 (NSW)
- Occupational Health and Safety Act 2000 (NSW)
Cases:
- Baiada Poultry Pty Ltd v R (2012) 246 CLR 92
- Bulga Underground Operations v Nash [2016] NSWCCA 37
- Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467
- Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50
- Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55
- Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
- R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321
- Royall v The Queen (1991) 172 CLR 378
- SafeWork New South Wales v Rawson Homes Pty Ltd [2016] NSWDC 237
- SafeWork NSW v Poletti Corporation Pty Ltd [2019] NSWDC 491
- Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316
- Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304